1923723 (Refugee) - [2022] AATA 2765

1923723 (Refugee) [2022] AATA 2765 (15 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Attila Mete
CASE NUMBER: 1923723

COUNTRY OF REFERENCE: Turkey
MEMBER:Sheridan Lee
DATE:15 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2022 at 12:59pm
CATCHWORDS
REFUGEE – protection visa – Turkey – particular social group – male homosexual – imputed political opinion – sexual minorities protests – state protection – detention – employment – heterosexual marriage – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZAKQ v MIBP [2016] FCCA 1186
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
SZLPN v MIAC [2010] FCA 202
SZNRZ v MIAC [2010] FCA 107
SZQMB v MIAC [2012] FMCA 24
SZRGE v MIAC [2013] FMCA 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from Turkey. He applied for the visa on 1 December 2016 on the basis that he would be persecuted in Turkey because of his sexuality. The delegate did not accept the applicant’s claims and refused to grant the visa.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia [in] November 2016 on a [visitor] visa. He applied for protection on 1 December 2016. The application for protection form contained the following information:
·The applicant was mistreated in Turkey because he is gay. Turkey is a Muslim country and gay people are unwanted.
·The applicant would be physically and emotionally harmed. He would not be able to secure employment or protection from the police, who would lock him up because he is homosexual.
·He moved to another area of Turkey, Kayseri, however he was still the victim of hatred and physical abuse.
Attached to the application for protection was a written statement that contained the following additional information:
·In Turkey, the applicant had no family, no friends and nowhere to stay.
·As the applicant grew up, he realised that he wasn’t physically, mentally, or sexually attracted to women.
·In high school the applicant formed a relationship with a boy named [Friend A]. They shared a bed together at school one weeknight and had sex. They were together for the remainder of high school. The couple separated when they went to study at college.
·At college, the applicant stayed with an aunt. His cousins would verbally and mentally abuse him. The applicant could not handle the abuse and moved back to his village to be with his parents.
·Word about the applicant’s sexuality got back to his village and his parents were abusive towards him.
·The applicant got back in touch with [Friend A] and rekindled their relationship. He was the only person with whom the applicant felt safe and at peace. After some time, [Friend A] received a job offer and moved interstate.
·The applicant felt lonely and depressed. He decided to move to Istanbul because he had heard that there was a big gay community.
·The applicant made new friends in Istanbul. However, people within the gay community were being physically assaulted by police officers. Some had to spend months in hospital. The applicant feared for his life.
·The applicant’s parents placed pressure on him to get engaged to a girl he didn’t know from Kayseri. His father threatened to travel to Istanbul and kill him if he did not follow through with the engagement. The applicant felt he had no choice.
·On one occasion, the applicant planned to attend a rally in Istiklal Caddesi with a friend named [Friend B] and a group of other people from the gay community. The rally was organised to protest the high number of deaths in the lesbian and gay community. The group became nervous and decided not to go. However, an undercover police officer heard them discussing the rally and they were arrested. The applicant was detained for two days. He was not given food or water, he was spat on, sworn at, hit and sprayed with a high-pressure hose. The applicant feared that he would die.
·After he was released, the applicant stayed at [Friend B’s] house for a few days while he recovered. During that time, the applicant discovered that the police called his family and told them he was gay. His dad fainted and his family wanted nothing more to do with him.
·The applicant began living with [Friend B] permanently. At times they were too scared to leave the house. After some time, [Friend B] and the applicant found some places where they could peacefully share lunch or dinner. They made friends whom they would meet at [Location 1].
·One evening, the applicant and [Friend B] were on their way home from the park when they received a call from a friend to notify them that another friend named [Friend C] was missing. The next day they were shocked to discover that [Friend C] was found dead at the park. He was brutally bashed to death by police while he was walking with his boyfriend. His boyfriend was able to run away.
·The applicant considered taking his own life. However, is aunt from Australia told him that gay people were accepted in this country and he could potentially live a happy life here. The applicant does not want to return to Turkey, where he would be mistreated.
The applicant was invited to attend an interview with the delegate, however he did not attend at the scheduled time and place. Ultimately, the delegate did not accept the applicant’s claim to be homosexual.
The applicant applied to the Tribunal for merits review of the delegate’s decision. A copy of the decision was provided to the Tribunal with the application for review.
Application for merits review
In a submission dated 13 December 2021, the applicant’s representative outlined that the applicant now considers himself to be bisexual. He entered a relationship with a woman, [Ms A], whom he met at his cousin’s wedding in 2019. The couple married [in] February 2020 and had their first child on [date].
The submission further outlined that bisexuals are a persecuted social group in Turkey. It was noted that “in Australia, [the applicant] continued to live in isolation with limited English skills. He continued to be embarrassed because of his sexuality. He did not have a relationship with a man or a woman until he met his current partner…
…[the applicant] further submits that he will also have issues in Turkey due to his imputed antigovernment sentiments stemming from the nature of his arrest in Istanbul. It is noted that he was attending a protest due to the number of deaths of members of the LGBT community. [the applicant] instructs that change is not imminent in Turkey and the situation for minority groups is not going to improve. Given the current stance of the President in Turkey and the head of religious affairs, it is clear that he is deemed as evil, risks spreading disease, his sexual preferences are un-Islamic which all impute him with a political opinion.”
The applicant appeared before the Tribunal on 16 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The applicant gave evidence that he was born in Kayseri, Turkey. On the date of the Tribunal hearing, the applicant’s mother and [siblings] lived in Turkey. The applicant lived in Australia with his wife and [child]. He had an uncle and an aunt who also lived in Australia. The applicant said his father lived in Australia, but he was unsure where because they don’t speak often.
The applicant did not identify with a particular ethnic group or religion. He spoke Turkish and said he had limited English.
Prior to moving to Australia, the applicant worked in [industry 1]. In Australia, he works as [an occupation 1].
The applicant gave evidence that although he is now a married man, in his past he was gay. If he returned to Turkey, it would put him and his family in danger. He claimed that everyone in Turkey would know he was gay because of his involvement with the gay community when he lived in Istanbul and Kayseri.
Before he moved to Australia, the applicant lived in Istanbul for three or four years. He said that he moved to Istanbul because his family realised he was ‘this way’ and his father became violent with him. In Istanbul, the applicant lived alone at first and then with [Friend B] for about three years in an area he referred to as [name].
He said that he met [Friend B] in around 2014 or 2015 at a small protest for gay rights in Taksim Square. The applicant said that the protest was attended by around 30 people and didn’t last very long. He did not participate personally; he just observed and spoke with [Friend B] after.
When the applicant met [Friend B] he didn’t have anywhere to stay. He had been staying in a hotel in Taksim. [Friend B] offered for the applicant to live with him. They had a sexual and romantic relationship. The applicant said that he didn’t socialise with large groups or go to clubs. He had [Friend B] and [Friend B] had four or five other gay friends.
Before [Friend B], the applicant said he had a relationship with a man named [Friend A] who he met when they were in high school. He had relationships with two girls that didn’t go anywhere. When he met [Friend A] he realised that his feelings were directed towards men at that time.
The applicant claimed that when he had a relationship with a girl, she tried to kiss him and he pulled away. She told other people about it and they gossiped. [Friend A] had a similar experience.
[Friend A] and the applicant had their first sexual experience in about [year range]. They attended a school camping event in the area they lived. The students slept in tents. They were given projects to complete in pairs and the applicant was partnered with [Friend A]. Each pair would go into a different area of the forest to complete their project. [Friend A] and the applicant went to a quiet area to collect wood and had sex.
Later, when they were at boarding school, the couple would sneak behind the building to hook up. The applicant said he was in a relationship with [Friend A] for about two years. The relationship ended when school ended. They both lived in different areas and had to travel to secondary college.
In relation to his previous girlfriend, the applicant claimed she was unfaithful because he couldn’t get close to her and they split up. His girlfriend gossiped about him and no one would be his friend. After that, he couldn’t have relationships with girls. When he went to college and lived with his aunt, his cousins treated him the same way. They would not let the applicant do anything with them. The applicant said that the boys at school would tease him when he wanted to play soccer, they would call him names like boar and slap him on the bum.
Because the applicant was treated badly by people at school and his cousins and aunty, he decided not to complete college. He got work in the [industry 2] sector in Kaysuri. While he was in Kaysuri he ran into [Friend A] and they had a relationship for four or five months. Even at the [work] site, the applicant was mistreated. The applicant said his father discovered what he was up to and physically assaulted him while he was angry.
While the applicant was living with [Friend B], he said that the living arrangement disturbed a lot of people around them. [Friend B] and his friends were organising a small protest, but the applicant didn’t like to get involved in those things and was against the idea. There was an undercover police officer who stopped the protest before it even started.
The applicant said that he was arrested with about four or five others and taken to cells and tortured. He thought the cells were in the [named] area but noted that he didn’t know Istanbul very well and they were transported in closed police vans. The police told the protesters that they would be taking a statement, but it was a lie. They were taken to the cells in the morning and held for a few hours before they were released without charge. The police threw ice water on him and threatened to stick a baton in his anus.
The applicant said that two or three of his friends were admitted to hospital in [District 1] because of the police torture. When I asked him if he could remember how many of his friends were injured, he clarified to say that three of them went to hospital but two of them were serious and had to stay. Their names were [Friend D] and [Friend E]. The applicant did not visit because he was treating himself and resting at home.
After the arrest, the group changed their regular meeting place and started to meet at [Location 1]. [Friend D] and [Friend E] had a friend named [Friend C] who was killed by police when he was walking from [Location 1]. Some friends tried to report the murder to another police station and they were beaten. The applicant said the incident happened in about 2016, close to when he travelled to Australia.
The applicant said that he wanted to engage with the gay community in Australia, but he didn’t have a car and he didn’t speak English. He tried to join [two websites] and use google translate to communicate. He met someone on the internet, they had a video chat and arranged to meet in person. Once the other man understood that the applicant couldn’t speak English he was annoyed that his time was waisted and told the applicant to fuck off. The applicant said he lost confidence and didn’t use the sites again.
The applicant said that he shared his sexual history with his wife early in their relationship. She shared her history with him also and they decided to be together and support each other. The couple were married at a reception centre and have a monogamous relationship. They did not have a religious ceremony. The applicant said that he could only care for his wife and child here in Australia. He noted that his wife had a difficult time after the birth of their child and the death of her mother.
[Ms A] gave evidence that she met the applicant at his cousin’s wedding. She attended the wedding with her mother.
[Ms A] said that the applicant was open with her about his past from the start of the relationship. She accepted it, so long as he was not involved with men once their relationship was official. She was worried that he hadn’t had any sexual relationships with women, but said he was nice to her and made her feel comfortable.
[Ms A] told her siblings about the applicant’s sexuality, but not her parents. She said her Dad is very strict. Her parents are Muslim, but she is not. [Ms A’s] mother passed away in April 2020 after receiving medical treatment in Turkey. Her father lived overseas on the date of the hearing.
Finally, the applicant’s representative asked if the relationship between the applicant and [Ms A] were to end, who is to say that he would not return to men.
FINDINGS
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims they made. This may involve an assessment of the applicant's credibility and, in doing so, I am aware of the need and importance of being sensitive to the difficulties asylum seekers often face. In SZLVZ v MIAC, the Federal Court commented that ‘in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims’.[1] However, as outlined in The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.[2]
[1] SZLVZ v MIAC [2008] FCA 1816 at [25].
[2] Geneva, 2019, para 204.

I further note that the Australia courts have not endorsed a free standing ‘benefit of the doubt’ obligation and various judgments have expressed doubts as to its existence under Australian law.[3] In particular, it is questionable whether such an approach is consistent with the statutory requirement for a decision-maker to be ‘satisfied’ of the matters set forth in s 65 of the Act.[4]
[3] See SZNRZ v MIAC [2010] FCA 107 at [19]–[21]; SZLPN v MIAC [2010] FCA 202 at [16]–[17]; MZAKQ v MIBP [2016] FCCA 1186 at [50]–[61]; SZRGE v MIAC [2013] FMCA 18 at [52]–[60]; SZQMB v MIAC [2012] FMCA 24 at [48]–[51].
[4] See SZNRZ v MIAC [2010] FCA 107 at [20].
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
There was a lack of consistency in the applicant’s narrative. In the written statement provided with the application for protection, the applicant said that he began living with [Friend B] after he stayed with [Friend B] for a few days to recover from the injuries sustained during the period spent in police detention. At the hearing, he gave evidence that [Friend B] and his friends organised the protest while they were already living together.
In relation to his arrest, the applicant’s statement said he was detained by the police for two days. However, at the hearing he said that they were taken to the cells in the morning and held for a few hours before they were released without charge.
The applicant’s first sexual experience with [Friend A] was also described differently in his written statement than it was described by the applicant at the hearing. The statement contained the following passage.
[Friend A] and I used to say [sic] overnight at the school as our school offered this on some week nights. One night, we secretly decided to sleep in the same bed. We were very scared that some one was going to catch us. We started kissing and then made love. We both enjoyed it very much and knew for sure that we were gay.
At the hearing, the applicant gave evidence that he first slept with [Friend A] in a quiet part of the forest while they were on a school camp. When I asked the applicant about the differences, he said that his evidence at the hearing was true. He explained that in the school dorm there were six bunk beds. He and [Friend A] were in the same room but never slept in the same bed.
The applicant further explained that he was assisted to complete the statement by his cousin, and she may have made some mistakes when translating what he said. I accept that minor inconsistencies might arise when an applicant provides a statement which is translated into English by an unqualified individual. Nevertheless, this does not assist to explain why major details such as the two descriptions of the applicant’s first sexual experience would be completely different. This evidence is not readily explained by a lack of English comprehension.
I asked the applicant if he had any photos of or with [Friend A] or [Friend B] or whether they maintained a connection through applications such as WhatsApp or Facebook. In response, the applicant said that they weren’t using phones when he was dating [Friend A] and he hadn’t located a profile for him on Facebook. Given that the applicant claimed to have dated [Friend A] while at school, I accept this to be a plausible reason for them to have no photos together and lost contact. In relation to [Friend B], the applicant also had no photos. He claimed that they only spoke on the phone through an internet account. However, they are no longer friends. The applicant said he was not friends with anyone from the past. While it is not impossible that the applicant never took a photo of or with [Friend B], it does seem unusual for a couple to have dated and lived together in a private space for up to three years and not have a single photo of each other. The absence of any documentary evidence alone does not lead to a conclusion that the applicant’s claim to be bisexual is untrue. Nevertheless, when considered in conjunction with the inconsistencies in the applicant’s narrative, it does support a finding that the applicant’s claims lack credibility.
I do not consider the applicant’s marriage to a woman as evidence that he is heterosexual. However, I do consider the timing of the amendment to his claim to put the credibility of his claim to identify as bisexual and to have previously identified as gay in question. The applicant advised the Tribunal that he no longer considered himself to be gay, but now bisexual, once he had entered a marriage with a woman and fathered a child. At which point, any relations with women could no longer be denied or concealed.
Considering all the evidence cumulatively and having regard to the applicant’s narrative as a whole, I do not find the applicant to be credible. For that reason, I do not accept his claim to identify as bisexual or to have previously identified as gay. I do not accept that the applicant had previous relationships with men, lived with a male partner or engaged with the LGBTIQ+ community. While it may be inferred, I do not accept that the applicant was physically or verbally assaulted by his father, the police or any other person due to his sexuality. I do not accept that he was arrested, detained, and tortured or that the police called his father and told him the applicant was gay. I also note that the applicant gave evidence that his father now lives in Australia and they do not maintain contact. In addition, the applicant has entered an ongoing, monogamous relationship with a woman. I do not accept that the applicant would have relations with men or engage with the LGBTIQ+ community now or into the reasonably foreseeable future if he returned to Turkey. In conclusion, I do not accept that the applicant would face a real chance of serious harm, now and into the reasonably foreseeable future, on the basis of his sexuality, imputed sexuality, or for any other reason if he were returned to Turkey.
In reaching this conclusion, I have considered the evidence of the applicant’s wife, which supported his claim to have previously identified as gay and to have had relationships with men in the past. I consider that the applicant’s wife had substantial motivation to support her husband’s claim. If his protection application were refused, he would be required to depart Australia and may face a lengthy wait to secure a partner visa if he applied offshore. This would leave the couple separated for an indefinite period and their [child] without [a] father.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[6] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey there is a real risk that he will suffer significant harm: s.36(2)(aa).
[6] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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